Re-launched in April 2010 after 12 months’ absence from the internet, this Legal Commentary on issues affecting Town & Country Planning offers comment on recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It is likely to be of interest mainly to fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.

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Monday, 28 July 2014

Agricultural occupancy conditions and ‘dependants’

The wording of the model agricultural occupancy condition (No. 45 in Appendix A to Circular 11/95, which remains extant following the cancellation of the remainder of that circular) has been widely used by many LPAs. It reads:

“The occupation of the dwelling shall be limited to a person solely or mainly working, or last working, in the locality in agriculture or in forestry, or a widow or widower of such a person, and to any resident dependants”.

The question inevitably arises as to whether there would be a breach of such a condition where a member of the family living with the agricultural worker is not financially dependent on that person. The point was considered by the House of Lords in Fawcett Properties Ltd v Bucks CC [1961] AC 636, and the general impression derived from that judgment was that financial dependence was the qualifying criterion.

However, the question arose again in the case of Shortt v. SSCLG [2014] EWHC 2480 (Admin), in which judgment was given on 22 July. An LDC had been sought from the LPA on the basis of a continuous 10-year breach of the AOC, based on the fact that (a) the person actually working in the locality in agriculture had made a consistent loss in the agricultural enterprise throughout that period and (b) that, in consequence of this, the person’s husband was not financially dependent on her, and so could not be a ‘dependant’ for the purposes of the condition. The LPA failed to determine the LDC application, so the applicant appealed to the Planning Inspectorate under section 195.

The Inspector took what many would consider to have been a very sound commonsense approach to this issue. In his view, the appellant’s contention in reliance on Fawcett was an unnecessarily restrictive interpretation of the wording of the condition. In the context of people living in a family, the words subsistence and support are capable of having a non-monetary construction, he suggested. Furthermore, were the meaning of ‘dependant’ in the condition to be invariably interpreted as financially dependent, it would leave members of a family who lived in a dwelling whose occupation was the subject of such a condition, but who were not themselves working in agriculture, at risk of enforcement action whenever the agricultural worker’s income fell below a level deemed to establish dependency, which would be a nonsense. The Inspector considered that the wording of the condition should be interpreted so as to avoid such a possibility, having regard to the potential impact on, or interference with, ordinary family life.

For the purposes of the High Court application, the judge assumed that Mrs Shortt was an agricultural worker, but made no profit from the farm in any year, and therefore made no financial contribution to the family. This was clear from the evidence of her accounts. After considering various statutory definitions of ‘dependant’ in other legislation, His Lordship observed that, so far as the definition of “dependant” is concerned, context is everything.

Turning to the decision of the House of Lords in Fawcett, in His Lordship’s view that decision was is itself equivocal as to whether “dependant” in the statutory context from which agricultural occupancy conditions derive necessarily requires an element of financial dependency. Various appeal decision had been called in aid by the applicant, but these were not entirely in her favour. For example, in one case (Land at Meadows, Colwell Road, Freshwater, Isle of Wight: Planning Inspectorate Appeal No App/C/96/P2114/643380), the Inspector did not consider that “the condition could be construed as excluding a married couple, one of whom works outside agriculture”, where the agricultural worker appears to have earned nothing from that enterprise. Therefore, His Lordship held, even in the statutory context (or a context in which the precise statutory wording had been adopted), there is no clear authority to the effect that “dependant” necessarily implies financial dependency.

The wording of the condition in the present case differed slightly from the model condition, and this appears to have had a material effect on the judge’s decision. The condition did not simply refer to agricultural workers and their dependants, but agricultural workers and “the dependants (which shall be taken to include a widow or widower) of such persons”. So “dependants” here were deemed to include a widow or widower of an agricultural worker, whether or not, before that worker’s death, the spouse was financially dependent upon him or her. It would strain the construction of the condition too far for it to mean “the dependants (which shall be taken to include a widow or widower who was, prior to the agricultural worker’s death, a financial dependant of that worker)”.

Given that “dependants” may or may not include dependency other than financial dependency depending upon the context of the word, it seemed to His Lordship that, if the term is to include a widow or widower irrespective of earlier financial dependency, looked at objectively, it must have been intended to have included a husband or wife without financial dependency. In his view it could not have been the intention of the condition to prohibit spouses who are not financially dependent upon an agricultural worker from occupying the dwelling during the worker’s life, but allow such spouses to occupy it after the worker’s death.

Therefore, the words as used in the condition, looked at as a whole, appeared to His Lordship to envisage “dependency” in a wider and more open-textured way than one requiring an element of financial dependency, certainly to include a spouse and minor children of the worker who is their wife and mother and who provides them with usual family services and care.

To that extent it could perhaps be argued that this judgment is dependent on its facts, that is to say, on the precise wording of this condition. The judge himself pointed out that he was restricting himself to construing the particular condition in this case. It was unnecessary for him to seek to construe “dependants” in the statutory context, and he declined to do so. No doubt he was unwilling to be seen to be differing from a House of Lords decision, but Fawcett was decided over 50 years ago in a very different social and economic context, and a broader interpretation of “dependants” may now be more appropriate, not least because a narrow interpretation could throw up some undesirable and even nonsensical anomalies in such cases, as the Inspector pointed out.

It remains to be seen how much weight can be placed on Shortt as an authority on this issue, but I suggest that Fawcett, even though it was a House of Lords decision, should no longer be uncritically accepted as authority for the proposition that, in the context of an AOC, the interpretation of “dependant” is necessarily confined to financial dependants. It should reasonably be taken to include those in a family relationship with the agricultural worker living with them, such as spouses and even perhaps adult children, even though those persons are financially independent.

6 comments:

RichardW
said...

I’ve always thought the concept of ‘dependants’ was inextricably linked to the concept of ‘the head of the household’ which in turn was historically seen as a purely economic concept set against a whole slew of sexist cultural norms. As you imply a lot has changed in society in 50 years. Since 1961 we’ve seen some recognition of the value of non-financial contributions to the home and family and a massive increase in households comprised of multiple earners. True equality between the sexes is still yet to be achieved but life is very different for my generation than it was for my parents and grandparents. So for us planners there is a very real problem in applying such outdated pre-Fawcett concepts to modern life but I think your final statement perhaps needs some qualifications. Personally I would still expect to see the agricultural worker occupying a more or less central place in the particular household structure and making a significant financial contribution (over time) to the household finances. For example, if an ag tag house was occupied by an investment banker married to a successful fashion designer with two grown children working in town and an eighteen year old on a gap year breeding rare sheep on a nearby farm I would be arguing quite strongly for a breach of condition in such a case.

Taking RW's example however, as the 18 year old working in agriculture is the one on which the rest of the household is 'dependant' on the right to live in that property, are not the rest of the family by virtue dependant on him!

I think it could be argued that the Human Rights Act is another change in circumstances since 1961. If the farmer's wife decides to stop being a housewife (or the farmer's husband decides to stop being a house-husband) and starts earning a significant income, in theory they would have to move out and this would surely be classed as denying their rights to a family life.

I think the whole concept of ag tags now needs review with the changes to the permitted development regime, in theory any building on an agricultural unit (does this include the farmhouse?) can be changed to class MB, a residential use which has no limitations atall on who can live it and makes a nonsense of the ag tag system anyway. Could LPAs really pursue breaches of such outdated conditions in light of this?

I think this scenario does pose a significant dilemma. I suspect that the deserted/divorced wife might well be in breach of the AOC, but the LPA must consider whether it is ‘expedient’ (in the public interest) to take enforcement action, and one would hope that they would take a sensitive and sympathetic view in this situation. It would appear, however, that the ex-wife may have to take steps to vacate the property sooner or later, unless the LPA can be persuaded to grant a personal permission to her (perhaps under section 73, varying the condition in order to allow her to remain in the property).